Legal thoughts, since 2005.

As explained in my previous post, in the first section of People v. Goldstein, the Court concluded that the admission of the opinion of Dr. Hegerty, a forensic psychiatrist offered by the state, which was based upon her interviews with third parties, was admissible pursuant to People v. Stone and People v. Sugden.

However, the Court then considered the issue of whether the admission of the interviewees' statements violated Mr. Goldstein's constitutional right to confront the witnesses against him. In making this determination, the Court applied the standards set forth in Crawford v. Washington, 541 U.S. 36 (2004), which overruled Ohio v. Roberts, 448 U.S. 56 (1980). Crawford established that the Confrontation Clause generally prohibits the use of testimonial hearsay against a defendant, even if the hearsay has been found to be reliable, unless the defendant is given the opportunity to cross-examine the out-of-court declarants.

The Court concluded that the interviewees' statements constituted hearsay despite the prosecution's assertion that the statements were not offered to establish their truth. The People argued that the statements were not evidence themselves, but rather were admitted to assist the jury in its evaluation of Hegerty's opinion. The Court rejected this argument and stated that "(t)he distinction between a statement offered for its truth and a statement offered to shed light on an expert's opinion is not meaningful in this context."

The Court then turned to the issue of whether the hearsay statements were "testimonial" as that term was explained in Crawford and stated that:

Crawford explained that the Confrontation Clause "applies to 'witnesses' against [*7]the accused — in other words, those who 'bear testimony.'" (541 US at 51). The Court added: "'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' . . . An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."

The Court concluded that the statements made to Hegerty were testimonial, since she was an agent of the State who was engaged in trial preparation and thus the statements were the equivalent of "formal" statements made to "government officers." The Court noted that the "Confrontation Clause would offer too little protection if it could be avoided by assigning the job of interviewing witnesses to an independent contractor rather than an employee." Accordingly, it held that Mr. Goldstein's rights under the Confrontation Clause were violated when the lower court permitted Hegerty to testify as to the interviewees' statements in spite of Mr. Goldstein's inability to cross-examine said witnesses. The Court concluded that the error was not harmless and ordered a new trial.

Thus, the Court interpreted the term "testimonial" quite broadly. And, as suggested by Eric at Indignent Indigent, the term as defined "should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports... and any number of other statements made under express questioning by law enforcement agents."

Comments

You can follow this conversation by subscribing to the comment feed for this post.

Here are my ramblings on Goldstein: At first glance, the majority's decision seems almost as bizarre as Mr. Goldstein himself, including raising sua sponte a state law question regarding a perceived distinction between the admissibility of an expert's opinion and the admissibility of facts underlying the opinion (raising the issue that neither party addressed and refusing to reach a "questionable assumption" that a party's expert becomes a "conduit for hearsay" was an unnecessary segue into muddled ivory tower ruminations and musings that leaves everyone guessing; and they don't even address the statutory rule governing the admissibility of such evidence in CPL § 60.55). Non-sequitur: The "battle of the experts" just gets sillier and sillier; I think it's a good time for reform of the insanity defense.

In any event, I would have to reflect a little further on whether reasonable minds could disagree whether there was a Crawford error. But I think the First Department got it right. See People v. Goldstein, 14 A.D.3d 32, 38 [1st Dept. 2004]). First, it may be that the interviewees' statements to the expert had the effect of being offered for their truth, but as the Court of Appeals conceded, "[t]he record does not specifically show that the interviewees knew this," and why are they inferring so much on behalf of the defendant, who should have objected with specificity that there was this defect in this testimony. And, wouldn't limiting instructions at the time of the testimony and the final charge be sufficient to solve the problem. Second, perhaps the psych expert was contracted-out "government officer," but why construe Crawford so broadly in this somewhat unique area of Confrontation Clause jurisprudence - after all, it's the defendant himself who raises the affirmative defense of insanity and I am sure there are other reasons to conclude that there is a difference of "constitutional significance" between police officials and psych experts.

Regardless of the merits of the Crawford issue, J. Read unquestionably got it right in her harmless error analysis. Unlike the majority, she weighs the "quality" and strength of the overwhelming nature of the People's case against the collective "harm" of four isolated and duplicated pieces of prosecution evidence. Her recitation of the eyewitness testimony of Goldstein before the pushing, the expert testimony, the testimony of the rebuttal experts, and the jury's quick two-hour deliberation and rejection of the "outlandish defense" theory is right-on and effectively counters the majority's poorly- And her explanation of harmless error review in general makes much more sense, and was the best answer both on the law, and, sub rosa, as a matter of equity (why should Goldstein have this wind-fall benefit and who could have predicted at the time of his second trial this tidal wave of change in the landscape of Confrontation Clause jurisprudence?).

The majority's expression of being "troubled" by the "tangible cost of a third trial" and "knowledge that another trial will bring added pain to innocent people, particularly to the family of Kendra Webdale," was gratuitous and an "added" slap in the face. Good timing too in the release of the decision -- during a transit strike just before the holidays when people are less likely to pay attention.

Since the reversal is based solely on federal constitutional law, I wouldn't be surprised if cer. were sought and granted to the big boys on this one. Although, the Supreme Court apparently has already granted 2 cert. petitions on Crawford cases. Because the Goldstein reversal is so shocking (I can't imagine this being tried for a third time) and deals with the separate question of how Crawford applies in the expert testimony context - an issue that is likely to arise recurrently in many criminal cases across the country -- it may just be the type of case that the Supremes would like to hear and decide; particularly if they have a harmless error out.

Oh Wdegraw--You're such a prosecutor! (I mean that in a good way, of course;) )

In my opinion, the Court got it right. The psychiatrist was an agent for the People. The Court's analysis was spot on as to that issue and I'm in complete agreement with the Court when it said " Nor do we think the difference between an expert retained by the State and a "government...officer" is of constitutional significance here. The Confrontation Clause would offer too little protection if it could be avoided by assigning the job of interviewing witnesses to an independent contractor rather than an employee."

I do agree that it is a bit unusual, and not particularly helpful, for the Court to raise an issue that was not raised on appeal, and then decline to shed any light on the issue. Especially given that the Court was apparently incorrect when it stated that New York courts have not yet addressed that issue (whether facts/statements relied upon by an expert in rendering an opinion may be disclosed to a jury.)

I do wish that the Court of Appeals and/or the Supreme Court had provided a clearer definition as to what constitutes "testimonial" evidence. As it stands, lower courts are essentially playing a guessing game on a case by case basis with the knowledge that any decision on that issue could easily be overturned by an appellate court, and a new trial required.

disclaimer

This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

The comments on this blog are solely the opinions of the individuals leaving them. In no way does Legal Antics or Nicole L. Black endorse, condone, agree with, sponsor, etc. these comments.

Further, any information provided on this blog or in the comments should be taken at your own risk.